People v. Cole

DOOLING, J.

Appellant was convicted by a jury of the crime of robbery of the second degree. Probation was denied him and he was sentenced. He presents this appeal through court-appointed counsel.

On October 24, 1958, a man carrying what appeared to be a pistol entered the United States Market in San Jose. Five persons including the store manager, Mayfield, were present.

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The man had adhesive tape on his face but no other mask or glasses. He made the five present lie on the floor. After striking and kicking Mayfield he forced him to rise and open the safe. In doing so Mayfield looked him directly in the face. The man took nearly $3,000 from the safe after binding all five persons present. After the robber fled the five freed themselves. Mayfield and another saw the robber enter a Volkswagen and drive away. A neighbor, Freitas, followed the Volkswagen to 121 Melrose Street where the driver stopped and entered the house. He later emerged and drove away in a Plymouth. The police, having been notified, pursued the Plymouth until it crashed into a bridge. The driver jumped out and ran into the creek bed where he was arrested and taken to a hospital. Appellant admitted that he is the man who fled in the Volkswagen and later in the Plymouth and who was arrested in the creek, but denied the robbery. He testified that someone had placed a simulated Luger pistol and the money in his Volkswagen and that finding them there he became frightened because he was an ex-convict and fled for that reason.

Mayfield identified appellant as the robber about one hour later. He repeated this identification both at the preliminary hearing and at the trial. Three others who were present identified appellant as the robber and Freitas identified him as the man who had fled in the Volkswagen and Plymouth. Two policemen identified appellant’s brother, who was with him at the trial, as the man whom they had arrested. One of these officers, Guido, under leading questions changed his testimony later and identified appellant.

The judge who denied probation and imposed the sentence is not the same one who tried the case. Appellant urges this as error, while recognizing that

People